The Trial of Slobodan Milosevic: The Demise of Head of State Immunity and the Specter of Victor's Justice

By Grosscup, Scott | Denver Journal of International Law and Policy, Spring 2004 | Go to article overview

The Trial of Slobodan Milosevic: The Demise of Head of State Immunity and the Specter of Victor's Justice


Grosscup, Scott, Denver Journal of International Law and Policy


The conflict in Yugoslavia during the last decade has culminated in unprecedented events in international law due to circumstances particular to the region. The war exposed a number of the intense ethnic tensions between Bosnian, Croatian, and Serb populations (1) that had lain dormant in the Balkan region for many years under the rule of General Josip Broz Tito. (2) The fall of the Soviet Empire in the late 1980's and early 1990's, and the rise of right to self-determination principles in the region during the same period, (3) brought instability and war to Europe, the likes of which had not been seen since the end of World War II. The resulting ethnic hatred and political instability led an international force to bring peace to the region (4) and has seen the first instance where the leader of an independent state is on trial for crimes that occurred while he was in power. (5)

The events that began in Yugoslavia in the early 1990's are not over. However, the majority of the violence that accompanied the rise and fall of Slobodan Milosevic has subsided. (6) The conflict involved numerous states and international organizations. (7) After ten years, United Nations troops are still deployed in the region, (8) serving to keep the peace, and numerous nongovernmental organizations (NGOs) are on the ground, administering aide, overseeing relocation programs, and ensuring safe transitions to democracy. (9)

The conflict in Yugoslavia has also forged new ground on how the international community deals with a nation's internal conflicts. (10) This includes international intervention by a regional peacekeeping force (11) and, in particular, the first trial of a sitting head of state for state sanctioned criminal activities, and violations of the evolving area of human rights law. (12)

This paper will examine the trial of Slobodan Milosevic, former President of Serbia and the Federal Republic of Yugoslavia. Part I discusses the events that led to the arrest and charges against Milosevic. Part II explores why traditional notions of sovereign immunity have not applied to his trial. Part III examines the reasons why the international community has made an effort to prosecute the former president. Lastly, Part IV looks at the impacts the trial will have on the former Yugoslavian states, (13) and potential ramifications if the prosecution fails to convict the former president.

PART I--TURMOIL IN THE BALKANS: THE RISE AND FALL OF MILOSEVIC

Prior to the eruption of war in 1991, Yugoslavia was the "Darling of the West." (14) During this period, Yugoslavia received most-favored-nation status, technology transfers, and cultural exchanges. (15) However, the Balkan states (16) have complex ethnic and religious characteristics that have fueled conflict between the Bosnian, Serb, and Croatian populations. (17) The assassination of Austrian Archduke Ferdinand by a Bosnian Serb nationalist in 1914 was the spark that sent the modern world into what was at that point the worst war in history. (18) After World War I, the Balkan states formed the state of Yugoslavia in 1929. (19) This union of ethnic Serb, Croat, and Slovene populations was tenuous, and in 1934 a member of the Croatian independence movement assassinated King Alexander of Yugoslavia. (20) Yugoslavia once again saw an invasion, but this time by the Axis powers of Germany and Italy in World War II. (21) During the War, Croatian collaborators worked to rid Croatia of Serbs, mimicking the Nazi concentration camps and exterminating over 500,000 Serbs and displacing another million. (22) Communist partisan forces, led by Josip Broz Tito and assisted by the Allied powers, helped rid the territories of Axis occupation. (23) From 1945 until Tito's death in 1980, ethnic tensions and nationalistic movements were suppressed by the state through relocating Serb minorities in the various republics outside of Serbia. (24) Professor Michael Scharf notes, "Tito's death .

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